T. L. James & Co. v. Waldrep, 16579

• Decision Date: 08 January 1965
• Docket Number: No. 16579,16579
• Citation: 385 S.W.2d 866
• Parties: T. L. JAMES & COMPANY, Inc., et al., Appellants, v. Theta WALDERP et al., Appellaees.
• Court: Texas Court of Appeals

Page 866

385 S.W.2d 866

T. L. JAMES & COMPANY, Inc., et al., Appellants, v. Theta WALDERP et al., Appellaees.

No. 16579.

Court of Civil Appeals of Texas, Fort Worth.

Jan. 8, 1965.

Touchstone, Bernays & Johnston and Jim E. Cowles, Dallas, for appellant T. L. James & Co., Inc.

Henderson & Bryant and James E. Henderson, Sherman, for appellant Harry Newton, Inc.

King & Massey and Marion L. Massey, Fort Worth, for appellees Theta Waldrep.

Cooper Blankenship, Dallas, for appellee Rose Ficke.

Norman P. Hines, Jr., Dallas, for appellee Estate of Otto Julius Seation, deceased.

LANGDON, Justice.

This appeal arised from three suits by appellees, Theta Waldrep et al., Mrs. Rose Ficke et al., and Norman P. Hines, Jr., Temporary Administrator of the estate of Otto Julius Seaton, deceased, in the 16th Judicial District of Cooke County, Texas, against appellants, T. L. James & Company, Inc., of Ruston, Louisiana, a foreign corporation, and Harry Newton, Inc., a Texas corporation, as a result of alleged injuries and the deaths of Merle N. Waldrep, John M. Ficke and Otto Julius Seaton, resulting from a collision occurring on November 2, 1961. Appellants, T. L. James & Company, Inc., and Harry Newton, Inc., each filed pleas of privilege in the three suits to be sued in Dallas and Young Counties, Texas, respectively. The three suits were consolidated by agreement for the purpose of hearing the pleas of privilege and are, therefore, consolidaged into one action before this court on appeal.

The appellees seek to maintain venue of their respective suits against the appellants in Cooke County Under exceptions 9a, 23, 27 and 29a of Article 1995, Vernon's Ann.Tex.St. in essence, they alleged that appellants were negligent in failing to provide adequate warning devices, signs and barricades to warn motorists of the repair work; to direct traffic into proper lanes and in causing north and soughbound traffic to be routed over the two west lanes of that portion of the highway where the collision occurred without such warning signs, and that such negligence was a proximate cause.

No findings of fact or conlcusions of law were filed by the trial judge. Since the order of the court overruling the pleas of privilege implies a finding that the appellants failed to erect proper barricades and warning signs directing the traveling public and that such negligence was a proximate cause, it is necessary to review carefully the evidence offered by appellees at the hearing on the pleas of privilege to determine whether the implied findings by the trial judge are supported by the evidence.

From our review of the record, we have concluded that the appellees failed to meet the burden imposed upon them to retain venue in Cooke County. We reverse and render.

The record contains the testimony of only three witnesses offered by and relied upon by appellees. The witnesses, all disinterested parties, were William R. Gardner, highway patrolman who investigated the accident, Joe Edward McCarroll, who witnessed the collision in his rear view mirror (portions of the depositions of these two witnesses were offered), and John C. Simpson, supervising resident engineer of the Texas Highway Department in Gainesville, who was previously resident engineer of the same Department in Cooke County and Gainesville. The latter appeared in person.

There are some discrepancies in the testimony of these witnesses as to the exact character, wording and location of the various signs and barricades because as they explained almost two and a half years had elapsed from the date of the collision to the date of the hearing on the pleas of privilege.

It is undisputed that the collision occurred in Cooke County on a portion of Highway 77 on which appellants, both road contractors, were jointly engaged, under contract, to convert from a two-lane into a modern four-lane expressway with the north and southbound lanes separated by a 45 foot median strip. The new highway is now designated as Interestate Highway 35. The highway designations of 35 and 77 will be used interchangeably in this opinion as was done in the trial court.

The topography in the area where the entrance road leading from California Street enters Highway 77 and where appellees allege signs and barricades were inadequate is without dispute. The testimony as to this area together with other factors relating to the collision are summarized as follows:

California Street runs east and west in the City of Gainesville. It passes under the roadway now designated as Interstate Highway 35, which runs generally north and south. An automobile traveling west on California Street (as did the cars of Seaton and of the witness McCarroll), after passing under Highway 77, was required to turn left and proceed over the entrance road leading up to and entering Highway 77 at a point several hundred feet south of California Street. A short distance south of this point of entrance was located a barricade on the left or east portion of the highway. This barricade had the purpose of squeezing southbound traffic to the right or west portion of Highway 77 as it proceeded south. It also served to divert northbound traffic to the right or east as it entered the City of Gainesville or continued north toward Oklahoma. At the time of the accident, all traffic, both northbound and southbound, from a point a few hundred feet south of where the entrance road from California Street entered Highway 77, traveled on the newly constructed concrete slab, which was 24 feet in width. These are the two west lanes referred to in appellees' pleadings. This slab was eventually to constitute the southbound lanes of Interstate Highway 35. The old two-lane highway which was eventually to constitute the two northbound lanes of traffic for Interstate 35 was closed because of additional work being done on it.

The witness McCarroll had passed under Highway 77 and turned left to gain access to Highway 77. As he proceeded up the entrance road, he noticed in his mirror the automobile driven by Otto Julius Seaton following him. A short distance after these two vehicles entered Highway 77, each passed a truck. After passing the truck McCarroll moved back to the right side of the roadway, but Seaton Continued on the left until he was in head-on collision with a pickup truck driven by Ficke, accompanied by Waldrep. This collision occurred in daylight on the 24 foot conerete slab which was divided into two lanes by a center stripe. No reason appears from this record as to why Seaton did not move back to his proper side of the road after passing the truck. The truck he and McCarroll passed was on the right side when it was passed. McCarroll moved back to the right after passing the truck. Under the record there was nothing to prevent Seaton from moving over into the right-hand lane when McCarroll did. Further, there is no evidence in the record that the absence or presence of any particular warning sign caused Seaton to continue in the left lane rather than to fall in line with the other vehicles in the right-hand lane.

Each of the witnesses testified as to several warning signs, barricades and similar warning devices located in the area in question. There is no direct testimony indicating the lack of any particular sign or barricade at any specific point.

Officer Gardner testified that there was a barricade, fence like, on each side of the highway at all new construction. There is evidence that such barricades were present at the site in question and no evidence refuting the presence of such barricades. There were two yellow signs, diamond shaped, 8 feet tall and about 4 feet in width, as you entered Highway 77. He could not recall the wording but thought it was 'two way traffic ahead' on one and 'slow' on the other. There were six signs on Highway 35, three of which could be observed by a person entering from California Street. Again unable to recall the exact wording of the signs, he stated they were to the same effect, 'slow, divided highway ends', and 'two way traffic ahead'.

McCarroll testified that as he turned off California Street on to the service road there were several signs indicating the road was under construction, one or more of which had blinker lights on them. He thought some were 'no passing' signs but was not sure about the speed limit signs referred to by the other witnesses. He stated that as he entered Highway 77 on the morning in question he had no trouble in determining that the road was under construction. There were several signs between the place he entered Highway 77 and the point of the collision. He could not recall the number of signs or precisely the language used in connection with the warnings given but by looking at the signs he knew it was clearly a two-way road.

John C. Simpson, resident engineer of the Highway Department, stated there were barricades and warning signs on the road leading from California Street to Interstate 35. That a barricade had a 'slow' sign on it and that on entering Highway 77 a motorist would confront another sign which to the best of his recollection read, 'Form single lane'. There was still another barricade south of the point where the entrance road came into Highway 77 which had the purpose of squeezing southbound traffic to the right. Both Simpson and Gardner referred to the 'No passing' and '45 miles per hour speed limit' signs south of Gainesville on Highway 77 erected by the Highway Department which served as additional warnings that the roadway was restricted.

All warning signs required of the appellants under their contract with the State Highway Department were erected in the area involved. There was no complaint or testimony to the effect that the appellants had not fully complied with the contract in placing required warning signs. According to the witness Simpson, who represented the State Highway Department at all times pertinent hereto, the barricades and warnings were...